- " In estate law, it describes a method of dividing an inheritance so that each branch of a family receives an equal share — even if the individuals within one branch end up with less,…
- When someone dies intestate in Ontario, Part II of the SLRA sets out the default distribution scheme.
- The numbers below are illustrative only — not a calculation of what any real estate would receive, since the actual value of an estate and how it is structured are specific to each family.
When someone dies without a valid will in Ontario, the Succession Law Reform Act (SLRA) decides who inherits — and it does not stop at your children. If one of your children died before you and left children of their own, those grandchildren typically step into their parent's place. This is called per stirpes distribution, and it is one of the more misunderstood pieces of Ontario's intestacy rules.
Families are often surprised to learn that a deceased child's share does not simply get reabsorbed and split evenly among the surviving children. Instead, it flows down to that child's own children. This matters if your family includes multiple generations, a child who has already passed away, or a blended family structure.
This article explains what per stirpes distribution means, how it fits into Ontario's intestacy scheme, and why relying on it instead of a will can produce outcomes families never intended.
What Does "Per Stirpes" Mean?
"Per stirpes" is a Latin phrase meaning "by branches" or "by roots." In estate law, it describes a method of dividing an inheritance so that each branch of a family receives an equal share — even if the individuals within one branch end up with less, individually, than someone in another branch.
The alternative approach, "per capita," would instead divide a share equally among every living descendant regardless of which branch of the family they belong to. Ontario's intestacy rules under the SLRA use the per stirpes approach when dividing an estate among a deceased person's descendants.
How This Plays Out Under Ontario's Intestacy Rules
When someone dies intestate in Ontario, Part II of the SLRA sets out the default distribution scheme. If there is a surviving spouse, that spouse's preferential share and residue entitlement are worked out first. Only what remains after the spouse's share is divided among the deceased's children — and, where applicable, grandchildren — using the per stirpes method.
If every child is alive at the time of death, this is usually straightforward: each child's branch receives an equal share. Per stirpes distribution becomes important specifically when a child has predeceased the parent but left children of their own.
The general pattern
- If a child is alive at the parent's death, that child takes their full branch share directly.
- If a child died before the parent but left children (the parent's grandchildren), those grandchildren generally divide their deceased parent's branch share equally among themselves.
- If a child died before the parent with no surviving children of their own, that branch share is generally redistributed among the remaining branches rather than disappearing.
A Simplified Illustration
The numbers below are illustrative only — not a calculation of what any real estate would receive, since the actual value of an estate and how it is structured are specific to each family.
| Family situation | What generally happens |
|---|---|
| Three children, all living | Each child's branch receives an equal one-third share of the divisible portion |
| One of three children died first, leaving two children of their own | That branch's one-third share is generally divided equally between the two grandchildren, while the two surviving children still each take their own one-third |
| A deceased child left no children | That branch's share is generally redistributed among the surviving branches rather than passing outside the family |
Why This Surprises Families
A minor grandchild's share is often held in trust
If a grandchild who inherits under this rule is still a minor, their share is typically not handed over directly. It is usually held in trust until they reach the age of majority, with a trustee-managed arrangement governing how the funds are invested and used until then.
It can create very unequal outcomes within the same generation
Per stirpes distribution divides by branch, not by headcount. A grandchild who is the only child of a deceased parent may receive a full branch share on their own, while a cousin who is one of three siblings splitting another branch receives only a fraction of that amount. This is by design, but it often does not match what families assume will happen.
None of it applies if there's a valid will
None of this per stirpes machinery is needed if you have a current, properly executed will. A will lets you decide exactly how — and to whom — your estate is divided, including how to treat grandchildren or a child who predeceases you. Intestacy applies a fixed formula regardless of what you would actually have wanted.
Frequently asked questions
Does per stirpes distribution apply if my child is alive but estranged from me?
Yes. Ontario's intestacy rules under the SLRA do not consider estrangement or your personal wishes — only legal relationships as defined by the statute. If you want to treat a specific child or branch of your family differently, a will is the tool for doing that.
What about a stepchild I never legally adopted?
Generally, only a person's legal children — biological or legally adopted — count as descendants for intestacy purposes. A stepchild who was never legally adopted typically does not inherit through this mechanism, though the details depend on your family's specific legal relationships and are worth reviewing with a lawyer.
Does the spouse's preferential share get calculated before or after the per stirpes split?
Before. If there is a surviving married spouse, their preferential share and residue entitlement are worked out first under Ontario's intestacy formula. Only what remains is divided among the descendants using per stirpes rules.
Can adult grandchildren demand their share right away?
Once an estate trustee is appointed and the estate is ready to distribute, adult beneficiaries are generally entitled to receive their share. A minor's share is typically held back until they reach the age of majority, and the exact timing depends on how the estate is being administered.
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